DEFENDERS OF WILDLIFE v. BABBITT

Plaintiffs, Defenders of Wildlife and Paul Huddy, bring this suit
against defendants in their official capacities as the Secretaries and
Directors of the Department of the Interior, Fish and Wildlife Service,
Bureau of Land Management, National Park Service, Department of Defense,
United States Air Force, United States Navy, United States Army, United
States Army National Guard, United States Marine Corps, Department of
Justice, Immigration and Naturalization Services, and the United States
Border Patrol, alleging failure to comply with the Endangered Species Act
of 1973, as amended, ("ESA"), 16 U.S.C. § 1531 et seq.; the National
Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq.; and the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706, with respect to
the survival of the Sonoran pronghorn.

Both plaintiffs and defendants move for summary judgment. For the
reasons set forth more fully below, the Court finds that the BOs, the
Recovery Plan, and certain EISs do not fully comply with the ESA and
NEPA, and therefore grants plaintiffs' motion in part and denies
defendants' motion in part. The Court further finds that defendants are
taking steps to conserve and recover the pronghorn as required by the
ESA, the BAs prepared by the consulting agencies do comply with the ESA,
and that certain EISs do comply with NEPA, and therefore grants
defendants' motion in part and denies plaintiff's' motion in part.*fn1

BACKGROUND

The Sonoran pronghorn (Antilocapra americana sonoriensis), one of five
subspecies of pronghorn, evolved in a unique desert environment and have
distinct adaptations to this environment which distinguish it from other
subspecies. Plan at 1-4. In 1967, the FWS designated the Sonoran
subspecies as endangered. 32 Fed.Reg. 4001 (March 11, 1967). While there
is uncertainty as to the current population of Sonoran pronghorn in the
United States, the most recent estimates range between 120 and 250
pronghorn. Def St. ¶ 4; Pl. St ¶ 4. The only habitat in which
Sonoran pronghorn currently remain in the United States is
federally-owned land in Southwest Arizona. See Plan at 8. In Arizona,
pronghorn inhabit the Barry M. Goldwater Range ("BMGR" or "Goldwater
Range"), the Cabeza Prieta National Wildlife Refuge ("CPNWR" or "Cabeza
Prieta NWR"), the Organ Pipe Cactus National Monument ("OPCNM" or "Organ
Pipe Cactus NM"), and to a lesser extent, nearby Bureau of Land
Management ("BLM") grazing allotments. Id. The Goldwater Range is
reserved for the use of the United States Air Force ("USAF") and United
States Marine Corps ("USMC"), and is also used by the United States Army
National Guard ("ARNG"). The CPNWR is administered by FWS and OPCNM is
administered by the National Park Service ("NPS"). The Immigration and
Naturalization Service ("INS") and United States Border Patrol ("BP")
also operate in the area of the pronghorn habitat, primarily along the
United States-Mexico border.

Factors threatening the continued survival of the Sonoran subspecies
include lack of recruitment (survival of fawns), insufficient forage
and/or water, drought coupled with predation, physical manmade barriers
to historical habitat, illegal hunting, degradation of habitat from
livestock grazing, diminishing size of the Gila and Sonoyta rivers, and
human encroachment. Plan at 21. Plaintiffs contend that the various
military activities taking place in the pronghorn habitat are
contributing significantly to the threat of extinction. Defendants claim
that although the military activities "must be monitored and controlled,
they do not constitute a survival threat to the Sonoran pronghorn." Def
Mot. at 4. Plaintiffs also contend that INS/BP activities, grazing on BLM
lands, and recreational activities in Cabeza Prieta
NWR and Organ Pipe Cactus NM are adversely impacting the pronghorn.
Defendants argue that these activities do not jeopardize the continued
survival of the species.

STANDARD OF REVIEW

This case is brought pursuant to the ESA's citizen suit provision,
16 U.S.C. § 1540 (g), and the Administrative Procedure Act,
5 U.S.C. § 706. Under the standards of review set forth in the APA,
the Court must review whether the agency actions at issue are
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706 (2)(A).

In reviewing the action of the agencies, the Court must engage in a
"thorough, probing, in-depth review," Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), to
determine whether the agencies have "examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action . . . ." Motor
Vehicle Manufacturer's Ass'n v. State Farm Mutual Automobile Ins. Co.,
463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). "In thoroughly
reviewing the agency's actions, the Court considers whether the agency
acted within the scope of its legal authority, whether the agency has
explained its decision, whether the facts on which the agency purports to
have relied have some basis in the record, and whether the agency
considered the relevant factors." Fund for Animals v. Babbitt,
903 F. Supp. 96, 105 (D.D.C. 1995) (citing Marsh v. Oregon Natural
Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377
(1989); Citizens to Preserve Overton Park, 401 U.S. at 415-16, 91 S.Ct.
814; Professional Drivers Council v. Bureau of Motor Carrier Safety,
706 F.2d 1216, 1220 (D.C.Cir. 1983)). "Summary judgment is an appropriate
procedure for resolving a challenge to a federal agency's administrative
decision when review is based upon the administrative record . . ., even
though the Court does not employ the standard of review set forth in Rule
56, Fed.R.Civ.P." Id. (citations omitted).

Under Section 7 of the ESA, when a federal agency undertakes or permits
actions that may affect a listed species, the agency must consult with
FWS to "insure" that their activities are "not likely to jeopardize the
continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of [critical] habitat
of such species." 16 U.S.C. § 1536 (a)(2). Under the formal
consultation process, the agency prepares a Biological Assessment ("BA")
that evaluates the impact of its activities on the listed species, and
the FWS, after evaluation of the BA and "the best scientific and
commercial data available," issues a Biological Opinion ("BO") detailing
"how the agency action affects the species" and whether the action is
"likely to jeopardize the continued existence" of the species.
16 U.S.C. § 1536 (a)(2), (b)(3)(A), (c). If the FWS concludes that
the activities are not likely to jeopardize the species, it may provide
for incidental take of the species. 16 U.S.C. § 1536 (b)(4). "Take"
is defined to include action that would "harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or [] attempt to engage in
any such conduct." 16 U.S.C. § 1532 (19)*fn3 Pursuant to FWS
regulations, "[h]arass in the definition of `take' in the Act means an
intentional or negligent act or omission which creates the likelihood of
injury to wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not limited
to, breeding, feeding, or sheltering." 50 C.F.R. § 17.3. Under
Section 4 of the ESA, FWS is also required to develop and implement a
recovery plan "for the conservation and survival of" a listed endangered
or threatened species. 16 U.S.C. § 1533 (f)(1).

B. Section 7(a)(2) — Consideration of Other Agency Activities

Under Section 7 of the ESA, each defendant agency "shall . . . insure
that" its activities are "not likely to jeopardize the continued
existence" of the Sonoran pronghorn. 16 U.S.C. § 1536 (a)(2).
Plaintiffs argue that defendants have failed to comply with this mandate
because they have not taken into account the cumulative effects of all of
the federal activities that affect pronghorn in preparing the BAs and
BOs, and therefore, the BAs and BOs have incorrectly concluded that each
defendant agency's activities would not jeopardize the continued survival
of the pronghorn. Plaintiffs move the Court to remand the BAs and BOs to
the defendant agencies for consultation about and consideration of these
cumulative effects. Defendants contend that the BAs prepared by the
consulting agencies need not evaluate cumulative effects. Defendants also
contend that the consideration of "cumulative effects" in the BOs
prepared by FWS need not include a discussion of other federal agency
activities under the regulations implementing the ESA, but instead they
are to be evaluated within the context of the "environmental baseline."
Defendants argue that the BO's prepared by FWS have adequately addressed
the other federal activities in the "action area" that constitute the
"environmental baseline." Plaintiffs respond by arguing that defendants
have, in certain cases, used an overly narrow definition of the action
area of a particular agency's activities so as to exclude consideration
of other federal activities, and that while some of the BO's list or
acknowledge other federal activities affecting pronghorn, none
of the BO's provides an analysis of the impacts of all the federal
activities on the species or analyzes the proposed actions in the context
of that aggregate impact.

Contrary to defendant's argument, the Court is persuaded, as explained
more fully below, that FWS must analyze the effects of the action in
conjunction with the effects of other agencies' actions on the
pronghorn, and that this has not been adequately done with respect to the
BOs at issue here. The purpose of Section 7(a)(2)'s consultation
requirement is to insure that an agency's activities do not jeopardize
endangered species such as the pronghorn. For this reason, applicable
regulations require an agency to analyze the effects of its activities
when added to the past and present impacts of all federal activities in
the action area on an endangered species, as well as certain anticipated
actions that have already undergone formal or early consultation. An
agency cannot fulfill this duty by simply listing the relevant activities
or by narrowly defining the action area to exclude federal activities
that are impacting the pronghorn. By limiting their analysis in such a
manner, defendants avoid their statutory duty under the ESA to insure
that their activities do not jeopardize the existence of the pronghorn.
Therefore, the Court will grant summary judgment to plaintiffs on their
Section 7(a)(2) claims relating to the BOs prepared by FWS in
consultation with defendants, and remand those BOs for further
consideration consistent with the regulations and the Court's opinion.*fn4

1. Environmental Baseline

The applicable regulations mandate that FWS address the following
pursuant to formal consultation:

(1) Review all relevant information provided by' the
Federal agency or otherwise available. Such review may
include an on-site inspection of the action area with
representatives of the Federal agency and the
applicant.

(2) Evaluate the current status of the listed species
or critical habitat.

(3) Evaluate the effects of the action and cumulative
effects on the listed species or critical habitat

(4) Formulate its biological opinion as to whether the
action, taken together with cumulative effects, is
likely to jeopardize the continued existence of listed
species or result in the destruction or adverse
modification of critical habitat.

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